Unified Patent Court and European Patents with Unitary Effect: the German Federal Constitutional Court, more than Brexit, creates a stalemate situation

By Francesca Giovannini


The German Federal Constitutional Court (Bundesverfassungsgericht) issued the long-awaited decision on the complaint filed against the Unified Patent Court (UPC) bills for infringement of the German Constitution. According to the decision, the Act of approval to the agreement on the UPC to confer sovereign powers on the UPC is void.

The main reason underlying the decision resides in the fact that the Act was not approved by the required qualified majority of 2/3 of the members of the German federal parliament (Bundestag). At the time of approval, according to an uncontested video of the parliamentary voting session at issue submitted by the claimant to the Court, the parliament’s members present were about 35.

Since Germany is one of the mandatory signature states for the UPC to operate, the project of the UPC as well as the associated European patent having unitary effect cannot move forward without a new approval by the German federal parliament, complying with the requirement of the qualified majority voting as established by the decision published today, and this regardless of the uncertainties due to the Brexit vote and the recent media reports that the UK will not be seeking involvement in the UPC despite having already ratified the agreement.

The full text of the decision, including the grounds and a dissenting opinion by three judges on the fact that a formal requirement should not block a transfer of jurisdiction and delay further European integration, is available, in German, at this link, while the Court’s website reports a press release in English.

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